State v. S.L.W.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos.
2021AP1736 Cir. Ct. Nos. 2019TP217
2019TP218
2021AP1737
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
APPEAL NO. 2021AP1736
IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.S.R., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S.L.W.,
RESPONDENT-APPELLANT.
Nos. 2021AP1736
2021AP1737
APPEAL NO. 2021AP1737
IN RE THE TERMINATION OF PARENTAL RIGHTS TO W.A.R.-JR.,
A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S.L.W.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
¶1 DONALD, P.J.1 S.L.W. appeals the orders terminating her parental
rights to her children, M.S.R. and W.A.R. Jr., and the order denying her
postdisposition motion. S.L.W. contends that she was deprived of effective
assistance of counsel during the fact finding hearing because trial counsel failed to
bring to the jury’s attention a complete list of the services that the Division of
Milwaukee Child Protective Services (DMCPS) was required to provide.2 As
1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-
20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
We note that S.L.W. was represented by two attorneys at the fact finding hearing. For
ease of reading, we refer to S.L.W.’s trial attorneys collectively as “trial counsel.”
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discussed below, we conclude that S.L.W. has failed to establish that she was
prejudiced. Accordingly, we affirm.
BACKGROUND
¶2 S.L.W. is deaf. S.L.W. communicates using a modified version of
sign language.3 She also has some ability to read lips, read in English, and use her
voice.
¶3 M.S.R. and W.A.R. Jr. are S.L.W.’s biological children. The history
leading to the termination of parental rights orders at issue in this case is lengthy.
In October 2013, M.S.R., who was three years old at the time, and W.A.R. Jr.,
who was a newborn, were removed from S.L.W.’s care due to concerns related to
domestic violence, in which S.L.W. was the primary aggressor; S.L.W.’s ability to
meet the children’s basic needs; and prior incidents of abuse or neglect to S.L.W.’s
two other children.
¶4 A month after the children were removed from S.L.W.’s care, the
trial court placed them back in the home with their biological father, D.R., under
the conditions that S.L.W. not reside in the home or have unsupervised contact
with the children. From November 2013 to August 2015, S.L.W. had minimal
communication with DMCPS workers and was not engaged in any services.
3
At the fact finding hearing, two interpreters were used to communicate with S.L.W. A
hearing interpreter would interpret the proceedings into American Sign Language (ASL) and then
a deaf interpreter would interpret ASL into a form of sign language that S.L.W. could understand.
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¶5 In April 2015, M.S.R. and W.A.R. Jr. were removed from the care of
D.R. and placed into foster care. At that time, it was discovered that S.L.W. was
residing in Rockford, Illinois, and was incarcerated due to a fight with her sister.
¶6 Starting in August 2015, DMCPS attempted to schedule visitations
for S.L.W. in Milwaukee. According to J.E., who was a case supervisor, S.L.W.
did not attend all of the scheduled visitations and had issues maintaining consistent
communication with DMCPS. S.L.W. was also resistant to services.
¶7 In November 2017, a new case manager, K.K., was assigned.
During the time K.K. was on the case, there were periods where S.L.W. was
cooperative with DMCPS and periods where she was not. For instance, in
June 2018, S.L.W. became upset with M.S.R. and said to her that “I should have
never had you in the first place, you spoiled brat.” As a result, K.K. decided to
temporarily suspend visitation until S.L.W. met with her and her supervisor to
discuss the visit and how to prevent something like this from happening again.
S.L.W. never met with K.K. and visitation remained suspended for a few weeks.
S.L.W. then requested to put her visits on hold until her mother passed away. As a
result, it was a couple of months before her visits resumed.
¶8 In April 2019, S.L.W. moved from Rockford to Milwaukee. Once
S.L.W. moved back to Milwaukee, she was able to make progress in her case
including moving to partially supervised visitation with the children. However,
after six partially supervised visits, visits moved back to fully supervised after
S.L.W. threatened to hit W.A.R. Jr. with a shoe during the supervised portion of
visitation.
¶9 On October 29, 2019, the State filed petitions to terminate S.L.W.’s
parental rights to M.S.R. and W.A.R. Jr. The petitions alleged that the children
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were in continuing need of protection or services (continuing CHIPS), pursuant to
WIS. STAT. § 48.415(2), and failure to assume parental responsibility, pursuant to
§ 48.415(6).
¶10 Due to the COVID-19 pandemic, visitation moved to a virtual
setting starting in March 2020. In May 2020, there were two virtual visitations
that resulted in changes to the visitation. First, on May 9, 2020, S.L.W. became
upset and started yelling at the children because they did not wish her happy
Mother’s Day or get her a present. As the visitation ended, she counted down the
time to the end of the visit, which upset the children. As a result, K.K. made the
decision to start supervising the visitation herself and reduce the visit time from
four hours to two hours. After the decision to modify visitation, S.L.W. sent a
series of videos to the children and foster parents in which she called the children
liars. On May 16, 2020, visitation ended after twenty minutes because S.L.W.
continued to indicate to W.A.R. Jr. that she did not like that he was lying about
how the visits were going. After May 16, 2020, S.L.W. refused to visit with the
children virtually.
¶11 In September 2020, the case was reassigned to case manager L.M.
L.M. set up in person visitations for S.L.W. S.L.W. did not attend the scheduled
visitation in October 2020 or November 2020.4
¶12 In December 2020, S.L.W. left Milwaukee and returned to Rockford
to live in a shelter. Subsequently, three or four virtual visitations took place
4
According to S.L.W., she missed the November 2020 visit because she was in the
hospital.
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between February and March 2021. An additional visitation was scheduled for
April 2021, but S.L.W. did not attend.
¶13 In April 2021, the State filed a motion for summary judgment on the
continuing CHIPS ground. The trial court partially granted the State’s motion for
summary judgment. Specifically, the trial court found that: (1) M.S.R. and
W.A.R. Jr. were adjudged to be in need of protection and services and placed
outside of the home for a cumulative period of six months or longer pursuant to
one or more court orders; and (2) that S.L.W. failed to meet the conditions of
return.5 As a result, the only remaining question for the jury to decide for each
child on the continuing CHIPS ground was whether DMCPS “made a reasonable
effort to provide the services ordered by the [c]ourt[.]” See WIS JI—CHILDREN
324.
¶14 On May 25, 2021, a fact finding hearing commenced. The State and
Guardian ad Litem (GAL) argued that DMCPS had made a reasonable effort to
provide the court ordered services—therapy, domestic violence counseling, a
psychological evaluation, parenting aid and supervision, and transportation once a
month for visitation. Additionally, the State and GAL argued that S.L.W. had
failed to assume parental responsibility. In response, S.L.W. argued that DMCPS
had failed to make a reasonable effort in her case, including communicating with
her effectively, and that she never gave up fighting for her children.
¶15 On June 3, 2021, the jury found that the State had proven both
grounds—continuing CHIPS and the failure to assume parental responsibility.
5
This decision is not challenged on appeal.
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The following day, June 4, 2021, the trial court found that it was in M.S.R.’s and
W.A.R. Jr.’s best interests to terminate S.L.W.’s parental rights.
¶16 S.L.W. filed a postdisposition motion alleging that she was deprived
of effective assistance of counsel at the fact finding hearing. S.L.W. contended
that trial counsel should have brought to the jury’s attention language in the
CHIPS dispositional order, which stated that DMCPS “will utilize the following to
help facilitate and improve communication with [S.L.W.],” including that DMCPS
would assist S.L.W. in getting internet access to enable videophones, setup a two
interpreter meeting at least once a month for substantive reviews and discussions
relating to goal progress, and use a live interpreter for any substantive discussion.
¶17 In response, the State contended that the language at issue was
simply “a list of ideas” to facilitate communication, and not services ordered by
the court. The State also asserted that, even if the list constituted services ordered
by the court, DMCPS had made reasonable efforts to provide those services.
Likewise, the GAL argued that the language at issue was not court ordered
services, and that trial counsel had raised S.L.W.’s communication issues with the
jury.
¶18 On February 18, 2022, the trial court denied the motion without an
evidentiary hearing. The trial court found that S.L.W. had failed to establish that
she was prejudiced in regards to either the continuing CHIPS ground or the failure
to assume parental responsibility ground. S.L.W. renews her argument on appeal.
Additional relevant facts are referenced below.
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DISCUSSION
¶19 Parents have the right to effective assistance of counsel in actions to
involuntarily terminate parental rights. See A.S. v. State, 168 Wis. 2d 995, 1004,
485 N.W.2d 52 (1992). Ineffective assistance of counsel claims in a termination
of parental rights proceeding are analyzed using the two-part test in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See Oneida Cnty. DSS v. Nicole W.,
2007 WI 30, ¶33, 299 Wis. 2d 637, 728 N.W.2d 652.
¶20 To obtain relief based on ineffective assistance of counsel, S.L.W.
has the burden to prove both deficient performance and prejudice. See Strickland,
466 U.S. at 687. Performance is deficient if it falls below an objective standard of
reasonableness. Id. at 688. To show prejudice, S.L.W. must show a reasonable
probability that, but for counsel’s unprofessional conduct, the result of the
proceedings would have been different. See id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome” of the
proceeding. Id. If a parent fails to satisfy one component of the analysis, a court
need not address the other. See id. at 697.
¶21 Whether counsel’s performance was deficient and whether an error
was prejudicial are questions of law that we review de novo. See State v. Domke,
2011 WI 95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364. Findings of fact made by the
trial court will not be overturned unless they are clearly erroneous. Id. A
postconviction motion may be denied without a hearing if it fails to raise sufficient
facts, makes conclusory allegations, or if the record itself demonstrates that the
appellant is not entitled to relief. State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d
568, 682 N.W.2d 433.
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¶22 On appeal, S.L.W. renews her argument that trial counsel should
have brought to the jury’s attention the language in the CHIPS dispositional order
that directed DMCPS “to help facilitate and improve communication” with S.L.W.
¶23 We agree with the State and GAL, that even if trial counsel
performed deficiently, S.L.W. has failed to establish prejudice with respect to the
continuing CHIPS ground. There is no reasonable probability that the outcome of
S.L.W.’s trial would have been different. See Strickland, 466 U.S. at 694. The
record contains overwhelming evidence that DMCPS did make a reasonable effort
to facilitate and improve communications with S.L.W.
¶24 During the fact finding hearing, there was testimony elicited that
DMCPS paid every month for internet for S.L.W. so that she could have access to
a video relay interpretation service; that DMCPS set up meetings and visitations,
but that S.L.W. was not always cooperative in maintaining contact; that when
S.L.W. resided out of state that DMCPS paid for her transportation to Milwaukee
so that she could have visits with her children; and that DMCPS communicated
with her directly regarding her case. In particular, J.E. testified that when she was
the supervisor on the case, DMCPS used a phone relay system, exchanged text
messages, and used live interpreters when in person. Likewise, K.K. testified that
when she was on the case, she attended in person visitations with S.L.W., the
children, and at least one interpreter.
¶25 Moreover, even if trial counsel was ineffective with respect to the
continuing CHIPS ground, the jury found that S.L.W. had failed to assume
parental responsibility—which is an independent ground for termination. To
establish failure to assume parental responsibility, the State needed to prove that
S.L.W. did not have a substantial parental relationship with her children. See WIS.
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STAT. § 48.415(6)(a); WIS JI—CHILDREN 346. A substantial parental relationship
means the “acceptance and exercise of significant responsibility for the daily
supervision, education, protection and care of the child.” Sec. 48.415(6)(b).
¶26 Here, there were gaps of time where S.L.W. had no visitation with
her children. The gaps included August 2014 to August 2015, June 2018 to fall
2018, and April 2021 to May 2021. In addition, testimony was elicited that
S.L.W. was not actively involved in the children’s daily supervision, education, or
medical care. Thus, the jury would have found grounds to terminate S.L.W.’s
parental rights regardless of whether the additional language from the CHIPS
dispositional order was brought to the jury’s attention.
¶27 Therefore, S.L.W. has not proven that she was prejudiced, and we
affirm the trial court’s denial of S.L.W.’s postdisposition motion without an
evidentiary hearing.6
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
6
We note that in her briefs to this court, S.L.W. also suggests, for the first time, that trial
counsel was ineffective for failing to elicit information that DMCPS was court ordered to
communicate with Rockford. S.L.W. did not raise this issue in the trial court on remand, and
thereby forfeited it. See State Farm Mutual Auto. Ins. Co. v. Hunt, 2014 WI App 115, ¶32, 358
Wis. 2d 379, 856 N.W.2d 633. Moreover, even if this issue is not forfeited, S.L.W. has failed to
establish that she was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The
order at issue simply states that DMCPS has “some responsibilities to communicate with officials
in Rockford, Illinois.” At the fact finding hearing, K.K. testified that she submitted a referral to
Illinois to transfer the case, which was denied. In addition, K.K. reached out to the Illinois mental
health coordinator for the deaf and hard of hearing and a former case manager of S.L.W.’s that
had relocated to Rockford. Accordingly, even if trial counsel performed deficiently, S.L.W. has
failed to establish that the outcome of trial would have been different had trial counsel referenced
this order. Id. at 694.
10